Tuesday, 16th of January, 2018

Disability

What is Disability?

The Disability Services Act 2011 (Tas) provides a definition of disability. This requires:

  • cognitive, intellectual, psychiatric, sensory or physical impairment, or a combination of these
  • permanence of the condition, or likelihood of permanence
  • a substantial restriction in the capacity of the person to carry out a profession, business or occupation, or participate in social or cultural life
  • a need for continuing significant support services
  • can be of a chronic episodic nature, rather than consistently ongoing. Schizophrenic episodes may qualify as being of a chronic episodic nature.

Disabilities are many and various. A person in a wheelchair is a person with a disability. A person with autism is a person with a disability. A person with muscular dystrophy is a person with a disability. A person with a disability can be of higher than average intelligence, they can be sportspeople and prominent members of the community. Having a disability does not prohibit a fulfilling engagement with life and the world. In fact, people with disabilities are no different than you or I. Everyone has something they are able to do, and something they are unable to do – everyone has abilities and disabilities.

A person with a disability is entitled to respect and regard. Some people with disabilities will be more vulnerable to others, because of their cognitive or intellectual impairment. Much of this chapter is directed toward the law surrounding these types of disability.

Government Departments and Services

The Department of Health and Human Services

The DHHS has a range of services, with information accessible on their website. The main Act under which the DHHS functions is the Disability Services Act 2011. This Act gives the DHHS powers to intervene to protect the rights of intellectually disabled people. It has the power of licensing training centres (that is, workshops) and residential centres (for example, boarding houses) for disabled people. The DHHS can insist on conditions being improved and can withdraw licences if this is not done.

The range of services the DHHS provides include: community access services, information and referral services, advocacy services, accommodation support services, individual support programs and respite services. See the website for more details.

DHHS officials can, with the written permission of the Secretary of the DHHS, enter and inspect specialist disability service provider premises in order to assess compliance with standards set out on the Disability Services Act. The Department has a general contact site where queries and complaints can be directed if there is an issue with services provided.

The Ombudsman

The Ombudsman can investigate the administrative conduct of government departments and prescribed and statutory authorities at both state and federal level, as well as local councils. See the Ombudsman section. Otherwise you can see the Ombudsman website, which gives step-by-step instructions on making a complaint.

Access to Information

There is no law saying that everyone is legally entitled to all information about themselves, but everyone should have access to information about themselves that affects their well-being. It is proper to ask for this information, and to keep asking until an answer is given. If the answer is given in terms that the person doesn’t understand, they should ask to have it explained more simply. In many cases, the information they seek will be provided without any legal obligation.

Information contained in files and documents held by Commonwealth government departments and authorities is available under the Commonwealth Freedom of Information Act 1982. Information contained in files and documents held by Tasmanian government departments and authorities is available under the Tasmanian Right to Information Act 2009. There is also the Tasmanian Personal Information Protection Act 2004. This Act applies only as far as it is not inconsistent with the Right to Information Act 2009.

There is a problem associated with the large amounts of personal information held by medical and education authorities, health professionals, employers and government departments. Sometimes such information is disclosed without the knowledge or consent of the person concerned, causing prejudice or embarrassment to that person. Damage from such disclosures is even greater where the information is out of date, misleading or incomplete. There is now extensive protection of information held by Commonwealth government and other agencies under Commonwealth privacy legislation. See Privacy and Right to/Freedom of Information.

Work and Domestic Life

Care Givers

‘Care givers’ here refers to all people who have regular ‘professional’ dealings with disabled people, including supervisors at sheltered workshops and activity therapy centres, staff at residences or nursing homes, and other disability ‘professionals’. In terms of legal rights and liabilities, there is no difference between people employed by Federal or State Governments and people employed in private institutions.

Intentional Interference

The legal rights of disabled people to live free from physical force, intimidation, coercion and imprisonment are the same as for all other citizens. An assault does not necessarily require physical contact. It may be committed by intending to arouse fear of immediate physical contact in another person. For example, a care giver pointing a knife at a person with a disability with the intention of arousing fear that the knife will be used, commits an assault.

A battery is committed by intentionally bringing about a harmful or offensive contact with another person without that person's fully informed consent. The person need not even be conscious of the interference at the time of the battery. For example, a care giver who takes a blood sample from a person with a disability without that person’s fully informed consent commits a battery. This would be the case even if the person with a disability was asleep or drugged.

Wrongful imprisonment is a civil action that protects a person's freedom from physical restraint. A person may be wrongfully imprisoned if they submit to imprisonment because of the threat of force. A care giver who locks a person with a disability in a room, commits wrongful imprisonment. The person with a disability need not even know that they had been locked in for the wrong to be committed. Accordingly, a care giver who locks the bedroom door of a sleeping person with a disability commits a wrongful imprisonment.

This area of the law raises the question of the sometimes used practice of placing a person with a disability in a locked room to ‘cool down’ or as a form of behaviour management. This practice is a type of ‘time out’. Under the current law, the locked room practice undoubtedly exposes the care giver to civil liability. However, if the locked room is used in a carefully considered and supervised way, the likelihood of anyone being sued would be very slight.

Defences to intentional wrongs

There are several defences to the charge of an intentional wrong. They include: consent; self defence; reasonable discipline; and necessity.

A person may give informed consent to intentional physical interferences. In the case of a blood sample taken from a person with a disability, that person must be aware of the basic nature of the procedure. If the care giver obtains informed consent for one procedure, this would not be a defence if the care giver then performed a more extensive procedure.

A person may use reasonable force in self-defence (that is, in defending themselves from attack). What force will be reasonable depends on the nature of the attack. A care giver who is being punched would normally be justified in punching and wrestling with a person with a disability to subdue the attack. If the particular person with a disability had a history of violence, the care giver may be justified in using greater force. The weapons used by the attacker (for example, a knife) are relevant in deciding what an appropriate response would be.

A person may also use reasonable force in coming to the defence of a third person. If a particular person with a disability attacks another person with a disability, a care giver would be justified, using the same considerations as above (that is, the history of the particular attacker, types of weapons, and so on) in intervening in the defence of a third person.

A parent (or a person standing in the position of a parent) can enforce reasonable discipline against a child (that is, by physical force or confinement). The force used must not be excessive. But it seems clear that the current law does not recognise a power of reasonable discipline over an adult, except where it involves prevention of an attack on others or themselves.

A person may interfere with the personal or property interests of another person in the case of necessity (for example, in order to avert an imminent danger). The danger must be a serious danger. A care giver would be justified in restraining a person with a disability who was clearly intending to throw themselves under a moving car. Similarly, a care giver in a sheltered workshop would be justified in restraining a person who intended to go too near dangerous machinery.

Negligence

If a person owes a 'duty of care' to another, and fails in that duty so that damage is suffered as a result, they can be sued for negligence. A care giver will undoubtedly owe a duty to be careful to disabled people with whom they have a professional relationship, but the most important question for care givers is the precise requirements of that duty. The usual requirements of a duty of care are that a person should exercise the same care as a hypothetical reasonable person. That standard can change over time, as community values change. If a person undertakes work that calls for special skills, such as nursing, then they must measure up to the standard of proficiency that is required in that profession which will be higher than that expected of the reasonable person.

It is unclear what level of duty of care is required of care givers without special skills. It may be that such care givers owe a duty to people within their responsibility only marginally higher than the ordinary duty of the 'reasonable' person. As care givers become better trained and their job roles more closely defined, it can be expected that the required standard of care will rise.

Following are some examples of situations in which care givers commonly find themselves.

Administering medication to a person with a disability

Even when a care giver has no medical training, they may be liable in one of two ways. Firstly, if the administration of the medication is simple, a reasonable person would take care to administer the correct amount, or they may be liable. Secondly, if the administration is complex, a reasonable person would ensure that a doctor or some other medically qualified person administered the medication. However, it may be that, in an emergency, a care giver would be acting reasonably in attempting to administer the medication.

Helping a person with a disability

When helping a person with a disability, for instance, to bathe, if the care giver didn't check the water temperature, they could be liable to a person with a disability who was badly scalded. If the care giver placed a person with a disability in an extremely hot bath, the care giver could be liable for damage caused to the person with a disability by a heart attack, even though the person with a disability had an abnormally weak heart.

The Duty to Physically Restrain Others

A particular problem for care givers is whether they owe a duty of care to third parties who may be injured by acts of a person with a disability. For example, a care giver may know that a particular person with a disability, if allowed to go shopping on their own, will cause damage to the property of shop owners. Does the care giver owe a duty to the shop owner to prevent the person with a disability from going shopping on their own? A similar question is whether care givers have a duty to stop intellectually disabled people from harming themselves.

The question is a complicated one, and two sorts of duty should be distinguished, that is, a general duty of care, and a specific duty to physically restrain a person with a disability. For example, a care giver in a group home who knows that a person with a disability in the group is likely to bite strangers has a general duty to the person with a disability and to third parties to plan any excursion carefully to minimise the risk of injury. However if the care giver has carefully planned an excursion, and a third party has unexpectedly wandered close to the group, the specific duty of the care giver to restrain the person with a disability is unclear.

The general principle is probably that in the absence of a right of control, the care giver will not have a duty to restrain an intellectually person with a disability, but this is not a settled point. Care givers should therefore check with their employer to ensure that they are adequately insured against any potential liability.

Who Pays for Wrongs?

Where a person suffers because of negligence or intentional interference they can sue for damages. The general principle is that people are responsible for their own civil wrongs. However, employers are vicariously liable for the wrongs committed by their employees in the ordinary course of carrying on their job. Most care givers will be employees.

If only the employer is sued then that person will have to pay all of the damages. If both the employer and the employee are sued, then the court will divide the liability for damages between them. If only the employee is sued, then the employee can have the employer made a party to the case, and again the court will divide liability for damages between them.

Accordingly, individual care givers, if sued by disabled people and held to be liable, will personally have to pay a percentage of the damages due to that person with a disability. While it is true many lawyers would advise clients to sue only the employer, it may be that a care giver can be finally liable. Accordingly, it is crucial for care givers to make sure that their employer has adequate insurance to cover liability for civil wrongs.

Housing

This section is concerned with residential facilities such as boarding houses, group homes and nursing homes. There is usually no difference in the legal rights of people in government-controlled or in private institutions.

Licensing of Residential Facilities

General requirements (for example, fire standards or hygiene) are administered by local government and semi-government authorities. There are general standards for residential facilities of all kinds.

No specific legislation governing residential facilities is in force at present, however note should be made of the Disability Services Act 2011, which deals with the provision of services for the disabled, including accommodation, and sets the standards for the provision of those services. Complaints can be directed to the DHHS or the Ombudsman.

Renting

Problems often arise for disabled people in boarding houses, hostels, and other residences when landlords impose large rent increases or attempt to evict residents. Disabled people often have a licence and not a lease. This is normally because they will not have a right to exclusive possession of the premises (for example, someone else, usually the proprietor, can enter their room/flat at any time). A licence does not normally protect a tenant's rights to the same extent as a lease.

Accidents and Injuries

People injured in residential facilities may be able to take action against the persons or bodies responsible for the premises if there has been a breach of duty of care. See Accidents.

Personal Relationships

A person with an intellectual disability has the same right as anyone else to have friendships, sexual relationships, to live with someone or to marry and have children. The only qualification of this is that which arises from any guardianship order which may be enforced in relation to the person.

If a person with an intellectual disability is over the legal age of consent they can decide to have sexual relationships. A parent cannot legally prevent a child who is over the age of consent from having sexual relationships.

Marriage and de facto relationships

Any person is free to marry provided they are old enough and they generally understand the nature and effect of the marriage ceremony. There is no legal reason why a person with an intellectual disability may not marry. They can also register a significant relationship, and qualify as being in a de facto relationship.

The Family Law Act 1975 (Cth) covers married relationships, and de facto relationships their breakdown and the welfare of the children of the marriage. There is no presumption in the law that a person with a disability is an unfit parent, although in custody matters a disabled parent will have a much better chance of success if they can show an awareness of the needs of the child, and can support the child either by themselves or with assistance from friends, family, or government agencies.

Family planning

Having children can impose severe financial and emotional strain upon individuals or a relationship. Serious problems often arise for people with intellectual disabilities when they want to have children. Other people, including their parents and authorities, may think they should not have children. Contraception can be used to plan a family. The choice to use contraception and the form of contraception used, is up to the individual concerned.

Both women and men can undergo surgery for sterilisation. The operation is a more complicated one for women than for men. A person with an intellectual disability should be given the opportunity to be as fully involved in the decision-making as their circumstances permit.

Where an adult is legally incapable of making the decision, a sterilisation on non-therapeutic grounds, such as where there are problems of menstrual management or hygiene can only be performed with the approval of the Guardianship and Administration Board. This is because sterilisation falls into the category of ‘special treatment’ under the Guardianship and Administration Act 1995 in respect of which ‘persons responsible’, who can normally give substitute consent, lack capacity to give consent. Non-therapeutic grounds for sterilisation are distinct from medically indicated surgery necessitated by the presence of disease, such as cancer.

In the case of a child with a disability, authorisation must be sought from the Family Court before a non-therapeutic sterilisation may proceed as parents lack legal authority to give consent to such a substantial and irreversible procedure.

Adoption

The consent of the parent(s) is normally required before the court can make an adoption order concerning the child of a person with an intellectual disability. The court will refuse to make an order where there is not proper consent. This is the case when the consent is obtained by fraud, duress or improper means, or the person giving consent did not fully understand what they were doing.

The court may dispense with consent where the parent is incapable of properly considering the question because of their mental or physical condition. The court will require extensive information on the circumstances of the child before making the order. Where adequate arrangements have been made for the child, for example where the child is being cared for by the grandparents or other people with whom the child has a good relationship, the court is unlikely to interfere.

Marion’s Case – sterilisation

In 1991, the High Court was asked to determine whether parents or courts could make a decision on the behalf of an intellectually and physically disabled child to undergo sterilisation. This was a question of the ‘best interests’ of the child. ‘Marion’ was the name given to the respondent. She suffered from mental retardation, severe deafness, epilepsy and behavioural problems. Her parents sought an order for a total hysterectomy and removal of her ovaries to prevent menstruation and pregnancy. Marion was incapable of caring for herself physically and was also incapable of understanding the meaning of sexuality, pregnancy and motherhood.

The High Court reversed a decision of the Family Court, which held that the parents could authorise the operation. The High Court said that only sterilisation as an incident of surgery were within the powers of parental consent. The decision to sterilise could not be made by the parents alone, but must be authorised by the Family Court if it was in the best interests of the child.

The Court also held that parental power to consent to medical treatment on behalf of the child decreased as the child developed the capacity and maturity to understand the nature of what was proposed. This was not fully applicable with Marion, as she was not ever going to develop the capacity or maturity to understand the nature of sexuality, pregnancy or motherhood.

The impact of this case has been that parents can not provide consent to sterilisation unless the sterilisation is a matter of last resort, which addresses the needs and capacities of the child’s life. The Family Court can authorise sterilisation, but only as a matter of necessity. Practice now points to the ready availability of other means of managing menstruation and chances of pregnancy, as invalidating arguments for the necessity of sterilisation.

Disability and the Law

The Protection of Rights

People with a disability have many of the same rights as everyone else in our society. They can use the same legal and non-legal remedies if those rights are infringed. They (or their representatives) can take action in the usual way to protect their rights (for example, for privacy, sexual relationships, and marriage). They can also use the provisions of anti-discrimination laws to enforce their rights to housing, education, and employment. However, there are differences in their legal status, and the means by which they access legal remedies or other forms of advocacy to have their issues heard. For example, they are often not tenants entitled to exclusive possession of premises, but licensees, which limits their rights of exclusion.

Legal Action and Help

Where the rights of disabled people have been infringed, court action can be commenced to enforce them. Disputes can also be lodged with the Australian Human Rights Commissioner or the Tasmanian Anti-Discrimination Commissioner. Usually, another person referred to as a ‘next friend’ acts on their behalf during the court proceedings. This would normally be a relative or friend of the person with a disability. Where court proceedings are involved, it is important to choose a solicitor who is familiar with the area of intellectual disability.

Legal aid may be available to intellectually disabled people in the same way as to other people. They may be eligible for assistance from the Legal Aid Commission depending on the nature of the legal matter and whether the person meets other eligibility criteria. Community legal centres have a particular interest in the legal problems of intellectually disabled people and provide advice and referral.

Anti-Discrimination Law

Anti-discrimination law aims to ensure that all people have an equal opportunity to get the things in life they need — a place to live, a job, health care, and a public education. Equal opportunity will often involve positive discrimination, which is a means of helping to level the playing field, and ensure equal opportunity through enabling people who are identified in legislation as being prone to discrimination. This includes intellectually disabled people.

Anti-discrimination law does not give a person with an intellectual disability (or anyone else) any special rights over other people. Rather, it tries to ensure that each person will have equal access to these things, and it makes it unlawful to discriminate by providing less favourable treatment because of disability.

Commonwealth legislation

The Commonwealth Government has enacted legislation dealing with discrimination generally. The Australian Human Rights Commission Act 1986 (Cth), which was previously the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and the Disability Discrimination Act 1992. These Acts are also discussed in ‘Discrimination’.

Tasmanian legislation

The Anti-Discrimination Act 1998 and the Disability Services Act 2011 are central to the protection of the rights of intellectually disabled people in Tasmania. Sections 15 and 16 of the Anti-Discrimination Act prohibit indirect discrimination and discrimination on the ground of impairment. Persons who are employed by the State Government of Tasmania are covered by the Tasmanian State Service Act 2000.

The Disability Services Act covers the provision of funding for specialist disability services, and for the inspection and regulation of these services. This is particularly important in terms of discrimination, because it goes to maintaining standards of care and services for a vulnerable section of the community. ‘Specialist disability services’ covers accommodation all the way through to education, training, recreation, therapy, transport. These are many of the services provided to people with disabilities. The Act sets out the principles and standards that are to govern both the administration of the Act, and the assessment of specialist disability services providers. This includes respect for people with disabilities, working toward their best interests, and working toward the opportunity for full and effective participation and inclusion in society.

Consumer Protection

Where a person with an intellectual disability has made an unwise contract or gift, the law can assist in a number of ways.

Incapacity

A person who lacks general understanding of the nature and effect of a contract or gift is said by the law to have ‘incapacity’. In deciding whether incapacity applies to a particular transaction, attention is paid to the level of understanding of the person, the complexity of the transaction and the value of the property involved. The more complex the transaction and higher the value of the properties, the greater is the understanding required.

Incapacity has no effect on contracts for purchase of ‘necessaries’ providing only a reasonable price was paid. Necessaries are things a person needs to maintain a reasonable lifestyle (for example, food, clothing, medical treatment, rent). Any other contract may be overturned by a person with a disability if:

  • the person lacked capacity for the transaction;
  • the other person involved realised or ought to have realised that the person lacked capacity;
  • the person with a disability can give back at least most of the benefits they have received under the contract (for example, if the contract was for purchase of a television, it is necessary that the television can be given back in much the same condition as when it was purchased); and
  • property that the person with a disability wants back has not been sold to someone else who is not aware of the person with a disability's incapacity.

A gift may be overturned if some of the above conditions apply. It is not necessary that the recipient of the gift ought to have realised that incapacity applied. Sometimes a person with a disability will enter a contract because (or partly because) of a misleading statement. This is called misrepresentation (for example, a car salesperson may say ‘this car has only done 20,000 kilometres’ when the car has in fact done 80,000).

Sometimes a misrepresentation is fraudulent (that is, intentionally false or made without caring whether it is false) in which case the person with a disability can normally overturn the contract and sue for damages to recover any loss suffered. If a misrepresentation is made innocently, the contract can still normally be overturned, but the person with a disability cannot usually sue for damages.

The court can also overturn transactions entered into following ‘undue influence’ or ‘unconscionable bargaining’. There is a ‘presumption’ of undue influence where:

  • a transaction is between people whose relationships the law recognises as giving rise to risk of undue influence, for example, doctor and patient, parent and child;
  • a person with a disability gains much less than they give in a transaction with a person in whom the person with a disability has great trust and confidence, for example, if a person with a disability gives their television to a house-parent whom the person with a disability depends on for advice.

Where this presumption of undue influence arises, it is then up to the person without a disability to prove that the person with a disability made an informed and independent decision to enter the transaction. If the person with a disability received independent advice, this would be easier to prove.

Consumer Protection Legislation

The Competition and Consumer Act 2010 applies to all those who provide goods or services. A person who believes that they have been the victim of misrepresentation or unconscionable conduct should seek legal aid or contact a community legal service.

Other Ways to Exercise Rights

Other avenues are available to people with disabilities (or a friend or relative) to exercise their rights.

  • The media: current affairs shows are keen to expose consumer rip-offs, especially where someone such as a person with an intellectual disability has been taken advantage of;
  • The Office of Consumer Affairs will investigate complaints about fraudulent or unfair commercial practices and, although Consumer Affairs cannot force a trader to remedy a complaint, most traders do not wish to be off-side with it, such that the result is often full or partial satisfaction for the consumer;
  • The civil division of the Magistrates Court or the Small Claims Court: these courts can deal with a dispute involving a contract between a consumer and a trader for the supply of goods or services (for example, where a person has bought a washing machine which is defective, or where a person has their car repaired but is not happy with the quality of the work).  The Small Claims Court can only deal with disputes involving less than $3,000. It can order that money be repaid or that works be carried out.

Complaints

Complaints about an infringement of rights can be taken to a local Member of Parliament. It is their job to follow up a complaint. When approaching a Member of Parliament it is best to:

  • see them in person — make an appointment;
  • present a written account of complaints;
  • take someone along for support.

Complaints and representations to Members of Parliament and the relevant Minister can be effective but must be followed up. Representations by action groups, or collective representation for common complaints, may also be an effective way of drawing attention to particular problems.

Complaints can also be directed to the Ombudsman.

The Media

The media can be a useful tool in bringing abuses of the rights of disabled people to public attention. However individual person with a disability should take care as the media can also abuse their rights.

Negotiation

Very often problems can be sorted out satisfactorily through negotiation before legal action is taken. One of the problems in negotiation for disabled people and their advocates, is that they often feel themselves to be powerless and can be intimidated by an organisation or by ‘able’ people.

In many cases negotiation using a third person (for example, a lawyer) adds balance to the negotiation. This also adds credibility to the person with a disability's case.

Citizen Advocacy

A ‘citizen advocate’ is an ordinary member of the community who becomes a long-term friend and adviser for a person with an intellectual disability. The advocate can help the person with an intellectual disability in making a complaint, for example, by complaining to the Ombudsman on behalf of a person with a disability.

Ideally, most citizen advocates would be trained by and registered with a local citizen advocacy office. However many people become citizen advocates simply by forming a friendship with a person with a disability.

Citizen advocates have no formal legal status. However, Government departments and other organisations are developing greater recognition of the value of citizen advocacy and are often willing to give advocates the same sort of informal recognition that they give to the next-of-kin of disabled people.

The Criminal Justice System

A person with an intellectual disability may become involved with the criminal justice system as a victim of crime, as a person accused of a crime, or merely as a witness. While the former are the two main areas of concern, some of the same problems may occur in all cases. For example, does the particular person with a disability have the legal capacity to give evidence?

As a Victim of Crime

According to the law, a person with an intellectual disability who is the victim of a crime has the same rights to the protection and assistance of the law as any other person, but often it does not work this way. There are some understandable reasons for this, for example even where a person with an intellectual disability does manage to contact the police, or someone else does so on their behalf, the police may decide not to prosecute because they feel that the person with a disability will not be a reliable witness.

A person can give evidence in court as long as they generally understand that they have promised to tell the truth (and what that means) and that telling a lie is against the law. Even if the person is permitted to give evidence, the judge or jury may not see that evidence as being as important as other evidence because they believe the person's understanding is insufficient.

Accused of a Crime

Intellectually disabled people accused of committing crimes are particularly vulnerable, because their special needs are often not met, and because the legal system tends to discriminate against the less articulate. Most criminal offences require an intention to do an unlawful act, or recklessness as to whether or not it was done. Some intellectually disabled people may be so disabled as to be incapable of forming an intention to commit a crime.

The defence most commonly thought of in relation to intellectually disabled people is insanity. Insanity is a complete defence in respect of crime involving a mental element. Someone who is found not guilty in this way may be detained ‘at the Governor's pleasure’ in a gaol or institution. They are released when the Governor chooses and often serve longer 'sentences' than people who are convicted and sentenced to gaol for the offence.

The first contact an accused is likely to have with the criminal justice system is with the police. Depending on police attitudes to the accused and their awareness of the person's disability, the police may exercise their discretion and with minor offences give a warning rather than charge someone.

Police in Tasmania receive only limited training in regard to 'mentally disturbed' people and most of this is with reference to the Mental Health Act and mentally ill people, not with intellectually disabled people. Thus it is particularly important for intellectually disabled people to be accompanied and assisted when being questioned by police officers.

There are guidelines in the Police Commissioner's Instructions to Police which, while they are not legally enforceable, police should follow. One of these is that any person who is suspected of being of ‘feeble understanding’ should, if reasonably practicable, be questioned by police in the presence of a friend, parent, guardian or other responsible person not associated with the enquiry. Another states that such ‘special measures as are practicable and appropriate’ should be taken to ensure a fair interrogation. Where there is any doubt about the fairness of an interrogation of a person with a disability or the voluntariness of a confession, an application should be made to the Court to exclude such evidence. Confessions made to police by intellectually disabled people are particularly unreliable often because of the person with a disability’s desire to please.

Fitness to Plead and to Stand Trial

Every accused person is asked to plead guilty or not guilty. Silence is assumed to be a statement of not guilty. The court must be satisfied that an accused person is fit to plead, that is, that they understand the act of which they have been accused and can indicate a response. A person who is held unfit to plead may still be detained in custody (in gaol or a mental hospital) by the Minister, the Governor or by the Court.

In theory, fitness to stand trial is different to fitness to plead, and involves the accused person being able to comprehend what is going on generally in court. They must be able to understand the significance of telling the truth to the court, the nature of the charge and be able to instruct their solicitor. Again, someone considered unfit to stand trial can be remanded in custody.

Alternatives to Imprisonment

It is important to realise that even when a person with an intellectual disability has been convicted of a serious offence, there are alternatives to imprisonment. A solicitor who is aware of the person's disability should attempt to establish the person's ability and willingness to comply with any conditions which might be imposed if they are placed, for example, on a good behaviour bond. Awareness of the resources and support services available in the community is very important here.

While it is hoped that court officials will acquaint themselves with this information, it is ultimately up to the solicitor, citizen advocate, or any other friend to acquaint the magistrate or judge with what support is available for the particular offender. Failure to arrange ongoing assistance and support, and even supervision, will almost inevitably result in the person's reappearance one day in the criminal legal system.

Sheltered Workshops

There is no special law setting out and protecting the rights of workers in sheltered workshops except for licensing under the Disability Services Act. Sheltered workshops are also classified as training centres under this Act. The relevant law is the general law of employment which in Australia consists of industrial awards, the common law, and legislation.

Industrial awards are legally binding orders which set minimum standards for terms and conditions of work (for example, wages, sick pay entitlements and so on). There are currently no special awards for workers in sheltered workshops. However provision has been made in most Tasmanian awards to incorporate the Commonwealth initiative of the ‘Supported Wage System’ run through the Commonwealth Department of Family and Community Services. This allows for a person with a disability to be paid at a reduced rate following assessment of that person’s capacity for work.

The Common Law

The common law position of workers in sheltered workshops is unclear. Generally it has been assumed that they are not ‘employees’ within the common law definition (that is, someone with a contract of employment). While many people working in sheltered workshops could arguably come within the definition of ‘employee’, there has been no reported case on this point and common law protection is uncertain.

Legislation

Legislation also provides benefits for workers. The most significant Acts are the Industrial Relations Act 1984 (Tas), the  Workers Rehabilitation and Compensation Act 1988 (Tas), the Long Service Leave Act 1976 (Tas), and the Workplace Health and Safety Act 1995 (Tas). South Australia actually has an Intellectual Disability Services Award, however Tasmania does not have the same kind of legislative framework for intellectually disabled people. The only Act that makes explicit reference to people with disabilities is the Industrial Relations Act 1984.

Under the Industrial Relations Act, sheltered workshops are not required to meet minimum award rate requirements (s80). Workshops that also classify as religious or charitable institutions, or training centres may fall under the Disability Services Act, and so the standards under which people with disabilities carry out work will be covered by that Act. Section 79 provides a scheme means by which employees can receive payment of below award rates. An employer must seek authority to do so from the Tasmanian Industrial Commission. The minimum rate of pay will be established by the licence.

The Workplace Health and Safety Act defines workplaces as ‘any premises or place where an employee, contractor or self-employed person is or was employed or engaged in industry, and includes part of a workplace’. Sheltered workshops could fall under the definition of a workplace, and must comply with the same health and safety requirements as other industrial or shop premises under the Workplace Health and Safety Act. If not, the Disability Services Act provides positive standards for workshops that exclude, by implication, unsafe work standards.

The Workers Rehabilitation and Compensation Actsection 91 provides for the payment of compensation to people who are under a legal disability, which includes people with intellectual disability. However, whether a person with an intellectual disability in a sheltered workshop qualifies as an employee under this Act is unclear.

The Long Service Leave Act grants all workers two months paid leave after ten years continuous service (this can sometimes be with different employers) and one month paid leave for every five years work after that. There has been no reported case deciding whether sheltered workshops are bound to provide this benefit.

Issues

The confusion about the legal position of workers in sheltered workshops means that the traditional common law protection and additional legislative benefits are, at least, unsure and possibly unavailable for these workers. Also, the variety of work done and the range of work arrangements (which vary from workshop to workshop and even more from worker to worker) makes classification in any of the usual ways difficult. A test case would resolve some of the areas of uncertainty.

In the meantime, individuals can arrange their own protective work arrangements. In the absence of award or specific legislative protection, and while the common law position remains unclear, the legal situation of each worker is determined by the negotiated terms of work. Workers in sheltered workshops should be assisted (ideally in a group but, if necessary, individually) to decide and set down the terms upon which they will work (that is, draw up ‘standard form’ contracts). Some intellectually disabled workers with assistance are capable of this type of organisation.

If it appears to a court that both parties, employer and workers, intended these arrangements to be binding, then the court will enforce the agreement, whether it is technically a contract of employment or not.

Regardless of a person with a disability's employment status, certain rights in the workplace are no different to anywhere else. For example, sexual harassment in a sheltered workshop is unlawful.

Wills

Providing for the needs of a person with a disability

It is important for everyone to make a will. This particularly applies if a person has an intellectually disabled child who is unable to look after their own property. A will can be made flexible enough to allow for improvements in a person with a disability's ability.

Where there is no will, a disabled child will be entitled to a share of the parent's estate (unless the estate is small and the person dies leaving a spouse), but where there is no specific provision in a will the law does not have the flexibility to ensure that the share is used to the person with a disability's maximum benefit. This means that it is very important to ensure that the will is clear in setting out the interests of that person.

Providing for a Person with a Disability

There are no hard and fast rules about making adequate provision for disabled children, but parents should be wary of only making a small provision for their disabled child. Parents sometimes do this because they feel that their disabled child is permanently placed in an institution or other residential facility, and that the child has modest needs. It is impossible to predict what the needs of the person with a disability will be ten or thirty years after the parents die (for example, the residential facility may have closed down or it may have had to put its fees up to well above the pension level).

Parents sometimes give all of their property to their non-disabled children and rely on them to look after their disabled brother or sister. One danger of this approach is that the non-disabled children may die first, perhaps many years before the person with a disability. Where parents do make much greater provision for one child than another the Supreme Court can vary the will under section 3 of the Testators Family Maintenance Act 1912 (Tas).

It is not normally desirable to leave property outright to an person with an intellectual disability, although this will not always be the case. Some disabled people have enough understanding to look after their property and to make wills themselves. The make-up of the estate, the person's nature and their level of disability should be considered in each situation. It is possible to give some property outright, with the bulk of property being given on trust.

Where a person with a disability is ‘absolutely entitled’ to property from a parent's estate because there is no will, or there is a will but it contains an outright gift to the person with a disability rather than setting up a trust, the property is handed to the person with a disability providing they have enough understanding to look after the property. If the person with a disability does not have that understanding then the person who has administered the parent's estate (the executors or, if there was no will, the administrator) is not allowed to hand the property over to the person with a disability. In these circumstances the person with a disability may have an administrator appointed under the Guardianship and Administration Act 1995 (Tas) who has legal authority to administer that person’s estate. Application can be made to the Guardianship and Administration Board for an administrator to be appointed.

Trusts

The alternative to leaving property outright to a person with a disability is to set up a trust under the will so that the property can be used for the benefit of the person with a disability. A trust basically amounts to appointing people who are called ‘trustees’ to use property in the way and for the purposes specified in the will.

For example, if parents only have one child, and that child is disabled, the parents could leave all their property to be used by trustees for the benefit of the disabled child. The will should say what happens to whatever property is left when the person with a disability dies. Income of a trust under a will is taxable. This means that it may be better to use money to buy something which can be used by the person with a disability (for example, a car or somewhere to live) rather than have it earn interest.

If parents have three children and only one of them is disabled, parents could, for example, leave one-third of their property to each of the non-disabled children, and the other third could be left in trust to be used for the benefit of the disabled child.

The will can be very specific about how much the trustees have to spend on the person with a disability, or it can give the trustees a wide discretion. Parents normally decide to give trustees a very wide discretion to pay to (or use for the benefit of) the person with a disability as much of the income of the trust as the trustees see fit. A similar discretion is normally also given to use the actual property which is being held in trust. Reasons for giving these broad discretions include:

  • they create maximum flexibility for the trustees to react to the changing needs and circumstances of the person with a disability;
  • they allow the trustees to remove or at least minimise the effect of the will on the person with a disability's social security benefits.

A disadvantage of giving broad discretions is that it limits what can be done if the person with a disability, or a friend of the person with a disability, does not feel that the trustees are fairly treating the person with a disability. This emphasises the importance of choosing suitable trustees.

The Trustees

The trustees will normally be the same people as the executors named in the will. The choice of trustees is obviously very important because of the discretion they are given and the length of time that they will have to administer the estate. Qualities to look for in trustees include:

  • youth — they may have to act for decades;
  • business sense — knowledge of investments, income tax and social security benefits;
  • independence from the family situation — trustees often will need to make decisions about how property is to be divided between the will-maker's children;
  • continued interest in the person with a disability — an awareness of their needs and desires and of advances in the methods of helping disabled people.

It is normally best not to appoint non-disabled children as the only trustees. This is because parents normally say in their wills that whatever is left over of the person with a disability's share when that person dies goes to the non-disabled children or their families. This places the non-disabled children in a difficult situation if they are the only trustees, because they know that whatever they do not spend on the person with a disability they end up getting themselves.

It is also better to have more than one trustee. They might include a non-disabled child, an accountant or solicitor or trustee company, an ‘advocate’ of the person with a disability and a friend of the family who takes an interest in the person with a disability.

If parents have no suitable people to appoint, it is best to appoint the Public Trustee or a private trustee companies. The advantages of these organisations are that they should continue to exist indefinitely, and they are cautious and sensible about investing money. Their disadvantage is that there are costs associated with their administration of the estate, and their involvement can be impersonal. The way to at least partially overcome this latter disadvantage is to include in the will a direction saying that the trustees must consult with, for example, the person with a disability and the persons or organisations providing day-to-day care for the person with a disability.

If one trustee dies, it is normally necessary for a new one to be appointed. Parents can set out in the will how this is to be done if they wish. Otherwise the Trustee Act provides a mechanism for this.

The remuneration to be received by the trustees should be arranged with the proposed trustees. It may be a percentage commission, a gift of a specified sum or the normal fees for an accountant or solicitor. Trustee companies normally charge a commission based on the initial value of the estate and a percentage of all income passing through the estate. If nothing is said in the will about remuneration, then the trustees can apply to the Supreme Court for a grant of commission.

The trustee's powers will generally be wide. It is very important that there be power to invest in some capital gain producing assets. In framing powers of investment potential, housing options should particularly be considered.

Housing for Disabled Children

It is obviously a matter of great concern to parents to be able to provide a good standard of housing for their disabled child on a long term basis.

If parents are in a position to leave their house to be lived in by the person with a disability this can be done through a trust in the will, providing the trustees can organise suitable backup facilities. For example, if parents have a three bedroom house it could be lived in by their disabled child and two boarders and the rent from the boarders could pay for the backup facilities. Sometimes a live-in houseparent might be necessary. The backup facilities might be available through the Department of Health and Human Services or local non-government organisations.

If parents are not sure whether suitable backup facilities will be available, they can direct their trustees to investigate the situation. If the facilities prove not to be available, the trustees can then be empowered to sell the house and hold the proceeds in trust for the person with a disability's benefit.

Sometimes parents might be able to give an organisation the use of a house in return for a promise to run the house as a group home for the disabled child and others. In this situation the trustees could be given power to terminate the arrangement if the organisation did not keep its side of the bargain.

Not too many parents would be able to leave a house in the way set out in the previous paragraphs. However, there are ways that such parents or their trustees could band together and buy a house to be occupied by the disabled child of each of them.

One way this could be done is through setting up a company similar to companies that own blocks of 'company title' home units. Each lot of trustees would own a share in the company and the share would entitle the person with a disability to live in the house. After the person with a disability died or moved out the trustees would sell their share to someone else.

Testamentary Guardians

Testamentary guardians are people appointed in the will to take over the parent's role as guardians of their children. However, as with parents, their powers only apply until the person with a disability is 18. There is no way that a parent can appoint a guardian for the rest of the person with a disability's life. However, just as many parents often continue to exercise a parental role in an informal way after a person with a disability reaches 18, so there will sometimes be someone who will fill this role when the parents die. Parents could in their wills declare it to be their wish that a named person do so.

Centrelink Payments

The disability support pension is affected by a person with a disability’s income. Income is defined in the Social Security Act 1991 (Cth) as an income amount earned, derived or received by the person for the person's own use or benefit. This would include someone who received benefit from a trust.

Rules about income-stream products such as annuities are complex and constantly changing. Parents or trustees should see a Centrelink financial adviser.

Property Not Governed by a Will

It is important to remember that not all property will always be covered by a will. For example, life insurance policies and superannuation benefits often go to a person specified in the policy or specified to the superannuation fund. If parents want these sorts of things to be covered by a trust, they need to make suitable arrangements.

Where a will-maker wishes to benefit a person with a disability, it is very important to have the will drawn up by a solicitor (or the Public Trustee or a trustee company if the parents want a trustee). Wills setting up trusts for disabled people are more complicated than most wills. Because of this, the will-maker should check that the solicitor is familiar with this area of the law.

Rights of a Beneficiary

A ‘beneficiary’ is a person who receives a gift or any other benefit under a will. An intellectually disabled beneficiary might:

  • receive a straight gift of money or other property;
  • be allowed to live in the family home for as long as they want;
  • be entitled to the income earned by a ‘Trust Fund’ set up under the will.

The most common situation is where the executors appointed in the will have a wide discretion about how much money they will pay to or use for the benefit of the intellectually disabled beneficiary. The job of the ‘executors’ or ‘trustees’ is to deal with the deceased person's property as spelt out in the will.

An intellectually disabled beneficiary has the same rights as any other beneficiary. These include rights to:

  • take executors to court if they have failed to comply with the will;
  • reimbursement where executors have used money for purposes not allowed in the will or where they have lost estate property through negligence;
  • ask the court to remove executors who are not doing their job properly;
  • ask the Registrar of the Probate Division of the Supreme Court to force executors to provide information about property income and expenditure.

Example

Jane is an intellectually disabled woman whose parents die leaving all of their estate to Jane's brother and sister. Jane (or someone on her behalf) applies to the court for a variation of the will. The court would probably order that Jane receive a good sized share of the estate. How big a share she would receive would depend on all of the circumstances. Sometimes she may get less than her brother and sister, sometimes more.

If Jane's parents set up a $10,000 trust fund for her but gave the rest of their $200,000 estate to Jane's brother and sister, the court would probably order that Jane's share be increased.

Alternatively, Jane's parents may have divided their estate equally between the three children and appointed trustees to invest Jane's share and to use the income as they see fit. If Jane is capable of living in, and wants to live in, a group home, but the trustees will not pay for this, Jane can apply to the court to intervene. The court might order that Jane's share be used to buy a house for herself and some friends or might order the trustees to pay rent for a house.

Will of a person with an intellectual disability

Some intellectually disabled people can make valid wills and some cannot. There are two basic requirements for the will to be valid. Firstly, the will-maker must have ‘testamentary capacity’ (be able to make a proper will). This requires that the person:

  • knows what a will is;
  • realises in general terms the amount and type of property they are disposing of; and
  • is able to weigh the moral claims that they should be considering.

Secondly, the will-maker must know and approve of the contents of the will. There is a strong presumption that this is the case where the will has been read by or to the will-maker. To protect a person with a disability's will from challenge, a number of precautions should be taken. While it is not necessary that the will-maker understands all of the legal terms in the will, it is preferable that the will be uncomplicated and in plain language. One of the witnesses to the will should be someone such as a psychologist. This person should sign a statement setting out that they were satisfied that the will-maker had testamentary capacity and knew and approved of the contents of the will. This statement should also set out the person's basis for being so satisfied, including details of the person's conversation about the will with the will-maker. If the will-maker cannot read, the statement should also say that prior to the will being signed, the witness heard the will read over to the will-maker who then stated that they approved the will.

The will should be drawn up by a solicitor experienced in will-making and, preferably, in dealing with intellectually disabled people, so that proper precautions are taken. The solicitor should keep comprehensive notes. If there is doubt as to whether a particular person is capable of making a valid will, the person should still be allowed to make the will.

If a person with an intellectual disability dies with no will or with an invalid will, then the 'intestacy' laws apply.

Under the Testators Family Maintenance Act 1912 (Tas) a person may, in certain circumstances, ask the Supreme Court to vary someone else's will. A person with a disability or someone on their behalf can do this just as anyone else can.

Statutory Wills

Provision now exists under the Guardianship and Administration Act 1995 (Tas) for the Guardianship and Administration Board to make a statutory will in appropriate circumstances.

When is it appropriate to make a Statutory Will?

Situations in which it may be appropriate to make a Statutory Will include where:

  • a person had testamentary capacity, never made a valid will and subsequently loses testamentary capacity; or
  • a person never had testamentary capacity and never made a valid will.

In these situations, when the person dies their property is distributed according to the rules of intestacy. It may be appropriate that provision be made in a Statutory Will for other or additional persons. An example of such provision may be for a person who has had the long term care of another person who lacks testamentary capacity.

The Board would not normally make an order for the execution of a Statutory Will if the proposed beneficiaries under the Statutory Will are the same persons who would inherit the person’s estate on an intestacy.

The Guardianship and Administration Board cannot make an order for the execution of a Statutory Will if there exists a prior valid will. If an application is made to the Board for an order for the execution of a Statutory Will, the Board is required to make such enquiries as are reasonable as to the possible existence of any prior will.

Before the Board will make an order for the execution of a Statutory Will, it must be satisfied that the person for whom the will is proposed does not have the capacity to make a valid will. In addition, the Board must consider the following matters:

  • any evidence relating to the wishes of the person for whom the will is proposed to be made, which may include the person’s present wishes as well as those expressed in the past;
  • the likelihood of that person acquiring or regaining capacity to make a will at any future time;
  • the interests of any person who would be entitled to receive any part of the estate of the person for whom the will is proposed to be made if the person died intestate;
  • the likelihood of an application being made under the Testator’s Family Maintenance Act 1912 (Tas)
  • the circumstances of any person for whom provision might be expected to be made;
  • any gift for a charitable or other purpose that that person might reasonably be expected to give or make by a will;
  • the likely assets of the estate of the person for whom the will is proposed.

If the Board determines that it is appropriate to make a Statutory Will it will make orders for its preparation. Once executed, a Statutory Will has the same effect as if it had been made by the person and the person had testamentary capacity.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.